Thank the gods. His article demonstrated that he's like a monkey with a machine gun.
If "Comic Book Guy" writes an article bashing Sotomayor, no one cares. But his careless words carried the weight of "The New Republic," and he obviously cannot be trusted to write both carefully and quickly.

He basically did everything short of calling Sotomayor an "uppity bitch." Scalia is also an arrogant asshole, but not even left-wingers like myself would say that this personal defect would disqualify him from the SC.
But in Rosen's eyes, women (especially Hispanic ones), should be deferential and polite.

Above all, Rosen says he's drawn a lesson from how his initial essay was treated by people of both ideological stripes. He won't be blogging any more. He wants to spend more time with the material before hitting "send."

If only the others with wide audiences and poorly thought-out things to say would "quit" as well... Unfortunately, spending more time with the material sometimes just makes the articles longer.

I don't read Rosen's follow-on comments to point to anything he would have written differently, except for the headline.

It seems like it might be harder than it looks when smart lawyers try to write short pieces for general audiences. The best such pieces get to the heart of the matter without unnecessary verbiage. The worst such pieces drop the analytical rigor and end up being glib and useless.

I doubt very much that Rosen went out &found his anon sources by expending shoe leather.

Rather, someone very likely called him up and said, "Sotomayor? Good god, man. Let me give you some names to call."

He got fed a story, and rather than stopping to pursue the *real* story -- "who is calling me with this, and what is their motive?" -- he ran with the spoon-feeding. Which didn't work out too well, for the spooner or the spoonee.

Any judge who values excellence, takes no shit, and refuses to lower his/her expectations, is going to piss some people off. Spoiled law clerks who think their memos weren't sufficiently appreciated. Unprepared counsel who got handed their ass and bear a grudge. Fellow judges who're envious that *she*'s on a SCOTUS short list &*they* are not.

He basically did everything short of calling Sotomayor an "uppity bitch." Scalia is also an arrogant asshole, but not even left-wingers like myself would say that this personal defect would disqualify him from the SC.
But in Rosen's eyes, women (especially Hispanic ones), should be deferential and polite.

I'm curious, how do you know that the hardness of the portraya is about Sotomayor's gender and race? I think it's worth noting that two of Jeff Rosen's best known articles are very harsh portrayals of two Supreme Court Justices that happen to be white and male: Justice Kennedy and Justice Blackmun (not online, but a famously harsh portrayal). To the extent some assume Rosen's article is about gender and race, I think it's worth first re-reading the Kennedy and Blackmun profiles.

He basically did everything short of calling Sotomayor an "uppity bitch."

I just don't get you people. Seriously, there's a huge gap in understanding that may never be bridgeable here. He reported something that he thought would be concerning to people who wanted a great liberal judge. How could he have actually informed people at large without also using tortuous and stultifying language? Trust me, there are plenty of people who have been discussing Sotomayor's alleged temperamental faults in much worse language all across the blogosphere.

Essentially, what he [Rosen] did was the equivalent of finding a few people who disliked somebody, giving them anonymity so they can say whatever they want, without any accountability whatsoever, and then passing along pure, vindictive gossip,...

How is that different from Newspapers do all the time? About a day before the California recall election, the Los Angeles Times wrote a story quoting anonymous women who claimed Schwarzenegger "groped" them decades ago. Then there is the story the New York Times published before the 2008 presidential election on Feb. 21 accusing McCain of having an affair with a lobbyist. Then exactly a year later the Times retracts the accusation.

An article published on February 21, 2008, about Senator John McCain and his record as an ethics reformer who was at times blind to potential conflicts of interest included references to Vicki Iseman, a Washington lobbyist. The article did not state, and The Times did not intend to conclude, that Ms. Iseman had engaged in a romantic affair with Senator McCain or an unethical relationship on behalf of her clients in breach of the public trust.

He reported something that he thought would be concerning to people who wanted a great liberal judge.

I think any racial/sexual animus on Rosen's part was unconscious if it existed at all, so I don't go quite so far as Jake.

But the piece lodged some serious accusations that needed fuller, more balanced treatment than what we got.

Actually, had it really been a blog post -- had Rosen taken a cautious attitude of "people who asked not to be named talked like this, and isn't that odd, and someone should look into this more" -- he wouldn't have come in for so much grief.

But he's a high-profile journalist who retrospectively professed to find many more caveats in the article than were apparent from the text. The article certainly seemed designed to put an early spike in Sotomayor's chances. And it was just crappy for Rosen to rush out a hit piece before taking a look at, for instance, her published decisions. Live by the scoop, die by the scoop.

This guy went off the reservation and wrote something the Barackbots couldn't work with, before he thought through the ramifications. Just walking back the piece since it came out wasn't enough. So this is his penance, to make sure Ezra &Co. still include him on the cc line of the rad kids' emails. It's really a pathetic showing.

How many of you people criticizing Rosen so harshly also criticized the nasty things that were said about Bush's nominees and other conservatives like Bork and Thomas? I'm just curious. Could I get a show of hands?

In answer to questions concerning my comment about Rosen's article's amounting to characterzing Sotomayor as an "uppity bitch"...
Please! Anyone with a cursory knowledge of gender stereotyping is aware of the double-standard for men and women. A man's being assertive is a good quality. A women's same assertiveness is perceive as bitchiness.
Did anyone dwell on these same character flaws regarding Scalia? No, because he's a strong man.Some people just can't stand a strong woman, and those people complained. Rosen ate those sexist comment like a cockroach eats crap. Rosen deserves to be driven out of town on a rail. His quitting blogging is too light a punishment for such atrocious reporting.

Sure thing, Mike. It was all a big conspiracy against this blameless, spotless, shrinking violet. Everybody, even liberals at the freaking New Republic, is out to get her. They probably CGI'd the wise Latina comments to frame her.

At base, guys like you can't imagine for a second that Barack might have made things harder on himself than he needed to. Or, even worse, that he's as race-obsessed as everyone who gave twenty seconds of thought to his twenty years at Trinity kind of suspected. For Rosen to point in that direction--that Obama picked Sotomayor in spite of all he wrote--shatters your childish illusion.

that he's as race-obsessed as everyone who gave twenty seconds of thought to his twenty years at Trinity kind of suspected.

Um, actually.... I predicted that she would be nominated despite the fact that conventional wisdom (re: what you read on this very weblog) suggested otherwise. I knew she'd be elected due to the race angle.

That changes nothing about why your comment was unsophisticated and therefore embarassing.

People want to be on the Supreme Court very badly. When conservative Wilkinson didn't get it, he was extremely depressed. Luttig left the bench entirely, writing a silly resignation letter about airplanes. Reports stated that when Alito didn't get the nod (due to Miers initially being nominated), it looked like someone shot had his dog.

So, yeah, it's a pretty big deal. People prepare their entire lives to get on the Supreme Court. They plot and calculate and manipulate starting in their teens or twenties.

If you can't comprehend why friends of short listers might have wanted to sabotage Sotomayor early on by feeding Rosen lies (or why Rosen may have cherry picked sources so that he could help out a friend in need), then there is a problem with your understanding of the matter being discussed.

People want to turn this into some weird conspiracy about the Left or something. As if Kagan's friends aren't on the Left!

How many of you people criticizing Rosen so harshly also criticized the nasty things that were said about Bush's nominees and other conservatives like Bork and Thomas? I'm just curious. Could I get a show of hands?

On Thomas: truthful or not, Anita Hill was somewhat less anonymous than the critics Rosen dredged up (or who dredged him up).

On Alito, the objections were his letter buttering up to the mob who wanted to keep women out of Princeton, his record as a strict constructionist when upholding conservative-made law but a judicial legislator when overriding progressive-made law, and his empathy for cops, corporations and polluters. Same goes for Roberts, apart from Alito's Princeton embarrassment. The irony with the Ricci talking point that's now doing the rounds is that conservatives are criticizing Sotomayor's strict construction of a progressive made law. The beef there should be not with her but with the legislation she was duty-bound to uphold; or are you saying that she should have been be a judicial legislator?

So no hands-up from me, Doc; or from any intellectually honest fellow conservative.

Orin: "hardness of the portraya" sounds like a gangsta rap epithet for a fine actor. Your point is a good one though. I see no evidence that Rosen's original piece, whatever else may have been wrong with it, was tinged with racism. (And I think Sotomayor should be confirmed and will be a fine justice; I also probably could have picked a long list of other jurists I'd rather see in the open seat).

What you say makes perfect sense, except that you assume that Rosen was manipulated. He covers the federal judiciary for a living and has for years. No doubt he has strong views on members of the judiciary most of us couldn't pick out of a police linueup. If he was "spun" by Kagan supporters, I am sure it was because he was willing to be.

AlanDownunder

If Ricci simply a matter of "strict construction" of the law, why was rehearing en banc denied only 7-6? Why did Cabranes write his dissent from the denial? Why did the Supreme Court grant cert.?

It was a strict construction of the law. It was 3-0 panel affirmation of the trial court's decision. This was a straight application of 2d Cir. precedent- they were following their precedent (I'm not sure if that follows with strict construction, but go figure). The reharing en banc by the Second Circuit was denied. Even had it been granted, that still doesn't mean the case would have been reversed- just that enough judges were interested enough to look at the issue (or, as likely happened to get to six, enough vocal judges persuaded others to consider it). That Cabranes (and Jacobs) wrote opinions in the denial in rehearing is noteworthy, and indicative that they would like the current way the law is applied changed.

So- what sarcastro is referring to is that "no everyone" (e.g. Cabranes) is "following the law"- some are arguing for a good-faith modification in it.

There's Second Circuit precedent that says that the trial court can resolve disputed issues of material fact in a summary judgment motion?

Uh.... yeah. I *really* expect more from you as a commenter DMN. This was all about disputed factual claims, not legal standards, correct? In fact, that's why the cert petition is:

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

But, of course, pace your insightful analysis, I am sure that SCOTUS will remand this case because the incorrect standard for summary judgment was applied. I mean, really, that was what Cabranes was all up in arms about, right? That's cool, because I'd love me some hot civpro action.

But, of course, pace your insightful analysis, I am sure that SCOTUS will remand this case because the incorrect standard for summary judgment was applied. I mean, really, that was what Cabranes was all up in arms about, right? That's cool, because I'd love me some hot civpro action.

You do know that what I said is exactly the position the Obama administration took, right?

And yes, Cabranes himself raised the issue of the "propriety of the District Court's evaluation, on summary judgment, of the City's motives -- a quintessential question of fact..."

So it was strict construction because they affirmed the trial court? Or because they were following their own precedent? Neither sounds like any definition of strict construction I ever heard.

From the site above's summary of the solicitor general's brief:

According to the government, the City's decision did not, absent evidence of it being a pretext, violate the Equal Protection Clause because it was facially neutral -- at most a form of disparate impact itself, without evidence of disparate intent. Even if the Court were to find otherwise, compliance with Title VII is a compelling governmental interest when there is a "strong basis in evidence" that the employer, if it had not acted, would have violated Title VII's demands. However, the government concedes, because the petitioners have raised a question of fact as to whether the City's decision not to certify was unreasonable or pretextual, the case should go before a jury.

So does that mean the Justice Department thinks that the Second Circuit *did* resolve a question of fact on summary judgment?

Yes, that was a *bit* of Cabranes opinion. A very small bit. But in the grand scheme of things it is neither here nor there. As you most assuredly know, whether something is (or is not) a disputed question of fact is often in the eyes of the beholder (and by beholder, I mean trial judge). But that's not the issue anyone's talking about when questioing whether the 2d Circuit panel "followed the law". Upholding a district court's finding of summary judgment is not exactly controversial.

Because people might be confused by what you wrote, allow me to quote the beginning of Cabranes' analysis:
"The core issue presented by this case—the scope of a municipal employer's authority to disregard examination results based solely on the race of the successful applicants—is not addressed by any precedent of the Supreme Court or our Circuit. Plaintiffs alleged that the City's actions violated, inter alia, their rights under the Equal Protection Clause and Tide VII."

He then helpfully breaks it down into (a) EPC and (b) Title VII. Something tells me that despite your pithiness, Cabranes wasn't dying to get the case so as to remand down to the DC under the current (as believed by the majority of the 2d Cir) precedent for further fact finding, as opposed to summary jundgment.

Neither. That's why I hedge my language whenI use "strict construction". I associate that with Constitutional (and/or statutory) construction. In this case, I think people are loosely using the phrase to mean that the panel was following precedent.

There's a related issue dealing with summary judgment, but it is not intrinsic to the legal issues (EPC/Title VII) in this case. Think of it this way- imagine a slip and fall case. The judge rules in favor of the defendants as a matter of law (sj), saying that they were not the landowner of the place where you fell. You, however, have some evidence that they did own that property and want to get it before a jury. The issue doesn't implicate negligence law, but, rather, the standard for summary judgment and what constitutes a factual dispute. To answer your question, yes- they believe that there was a factual dispute that should not have been disposed of on SJ. That isn't what the political controversy is about, however.

Of course summary judgment standards are enormously important to a case like this. For the city it's all about the distribution of legal (and sometimes political) burdens. If the black firefighters have a meritorious Title VII action if the test results stand and the white firefighters lose on summary judgment if the test results are ignored, how will cities decide questions like this in the future?

Your slip and fall analogy is inapposite, because the issue on which summary judgment was granted in your hypothetical had nothing to do with the actual slip and fall. Here the issue is whether the ground for the city's decision to throw out the test results was pretextual or not. (If the trial court/2d circuit had granted judgment on the ground that the statute of limitations had run or the like, your analogy would be on point.)

The funny thing is that now that the case is such a hot potato, the Justice Department is all but imploring the Court to decide the case on the grounds the Second Circuit misapplied summary judgment standards.

As for you jumping all over Mr. Nieporent for making a perfectly valid point, I'll just say that I expect more of you as a commenter.

First, extending DMN the same courtesy I like to see extended to myself, I would apologize if I was unduly harsh in my assessment of his contribution. I think it was two ships passing in the night- he was adding something he felt was relevant to the overall issue, while I felt he was adding something that was irrelevant WRT the issue I was addressing.

Second- I think you are wrong, and I think it is an issue of goalpost shifting. This started as whether (in the context of Sotomayor/ the original panel) the 2d Cir. "followed the law" (followed precedent, are "strict constructionists", are not racists, or whatever you want to use in today's charged debate du jour). Of course summary judgment standards are important; but there aren't varied because of the (statutory) nature of this claim. Does the DOJ prefer this to be remanded? Sure- until a more favorable case (better facts) comes along. Such is forward-thinking litigation. But nothing about the "correctness" of the grant of summary judgment has really been relevant to the political questions that have been raised by this case.

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